Aaron Thomas v Motorline Pty Ltd T/A Motorline [2017] FWC 4022

1 Fair Work Act 2009 s.394—Unfair dismissal Aaron Thomas v Motorline Pty Ltd T/A Motorline (U2017/4801) COMMISSIONER RIORDAN SYDNEY, 14 AUGUST 2017 Application for relief from unfair dismissal – extension of time. [1] Mr Aaron Thomas (the Applicant) was employed by Motorline Pty Ltd on 19 November 2007. Mr Thomas resigned his employment on 28 November 2016. Mr Thomas claims that he was constructively dismissed. Mr Thomas lodged his unfair dismissal application on 4 May 2017. [2] Mr Thomas’ application was lodged 153 days outside of the statutory timeframe. Motorline has raised this jurisdictional objection in relation to Mr Thomas’ application. [3] Ms B Byrne of McCullough Robertson Lawyers was granted leave to appear for Motorline and for Mr J Franken from Employee and Executive Protect (EEP) to appear for Mr Thomas. [4] Mr Thomas provided a witness statement (Exhibit T1) and was cross examined by Ms Byrne. Relevantly, Ms Byrne did not object to any of the content of Exhibit T1. [5] The Fair Work Act 2009 (the Act) provides that an application for an unfair dismissal remedy made pursuant to section 394 of the Act must be lodged within 21 days after the dismissal took effect.1 The Fair Work Commission (Commission) can extend the time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances. [6] In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Section 394(3) provides: (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken [2017] FWC 4022 DECISION -- 1 of 6 -- [2017] FWC 4022 2 effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group2 where the Full Bench said: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. [14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 3 Reason for the delay-s.394(3)(a) [8] Mr Thomas testified that he was genuinely unaware that he could make application for an unfair dismissal remedy on the basis that he had resigned. It was only after his mother had spoken to a representative of EEP that he understood that such an application was possible on the basis that he may have been constructively dismissed. -- 2 of 6 -- [2017] FWC 4022 3 [9] Ms Byrne referred me to the decision of Nulty1 and submitted that simply because Mr Thomas resigned from his employment does not excuse him from complying with the timeframe provisions of the Act. [10] I have taken this into account. Whether the person first became aware of the dismissal after it had taken effect- s.394(3)(b) [11] It is uncontested that the Applicant submitted his resignation on 28 November 2016. [12] I have taken this into account. Any action taken by the person to dispute the dismissal-s.394(3)(c) [13] I note that Mr Thomas filed his application four days after he became aware that he could make an unfair dismissal claim for constructive dismissal. [14] Motorline submitted that all of the relevant information pertaining to Mr Thomas’ situation is readily available and accessible on both the Fair Work Commission and Fair Work Ombudsman’s websites. [15] I have taken this into account. Prejudice to the employer-s.394(3)(d) [16] I am satisfied that there would be no greater prejudice caused to Motorline by Mr Thomas’ application being listed now than there would have been had it been lodged inside the statutory timeframe. [17] I have taken this into account. The merits of the application-s.394(3)(e) [18] In the matter of Kornicki v Telstra-Network Technology Group2 the Commission considered the principles applicable to the extension of time discretion under s.170CE(8) of the former Workplace Relations Act 1996 (Cth). In Kornicki the Commission said: “If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”3 1 Nulty v Blue Star Group [2011] 203 IR 1. 2 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C. 3 Ibid. -- 3 of 6 -- [2017] FWC 4022 4 [19] For the purpose of determining whether to grant an extension of time the Commission “should not embark on a detailed consideration of the substantive case.”4 [20] However, I believe that it is necessary in this matter to give some additional consideration to the merits of the argument because it involves a claim of constructive dismissal. In Nohra v Target Australia [2010] FWA 6857, Roberts C held that: “There is also a jurisdictional issue whereby Target claims that Ms Nohra resigned from her job and therefore there was no termination of employment at the initiative of the respondent…In my view, it is necessary to determinate the jurisdictional point before any possible weight can be given to it in any consideration by me of the extension of time application.”5 [21] Mr Thomas resigned on the afternoon of 28 November 2016. In the morning of Monday 28 November 2016, Mr Thomas’ immediate superior, Mr Matthew Hayden, said to Mr Thomas words to the effect of:- “it would look much better for me (Mr Thomas) and on my resume if I resigned rather than having been fired”.6 [22] This conversation occurred after Mr Thomas had received a formal written warning on 23 November 2016. Mr Thomas had also sought clarification in relation to a HR issue from the Dealer Principal, Mr Craig Rose who responded in the following terms on 25 November 2016: “Aaron You speak with your managers being Matt and Marcel. I am across the recent issue with the sump and would have terminated you for incredibly reckless work again but they have given you a final chance. I don’t feel you deserve it as in this instance, you persisted fitting and damaging with seemingly no care. This is the Ranger all over again. I have no more patience or tolerance for your less than acceptable performance. I do not have confidence in your attention and skill and after nearly a decade of investing in your development, am very disappointed when I compare you with your colleagues in the workshop. You need to group up as you are not a first year kid anymore and your mistakes have consequences which I pay for through rectification with the potential of losing customers. You are being monitored very closely by Matt and Marcel who are there to help you forward. 4 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]. 5 Nohra v Target Australia [2010] FWA 6857 at [3]. 6 Ex T1, AT7. -- 4 of 6 -- [2017] FWC 4022 5 Craig” (my emphasis) [23] In O’Meara v Stanley Works Pty Ltd PR973462 [2006] AIRCFB 496 at [23], the Full Bench of the Commission concluded that: “some action on the part of the employer which is either intended to bring the employment or has a probably result of bringing the employment relationship to an end…In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probably result or that the… [employee] had no effective or real choice but to resign” (my emphasis). Further, in Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279 at [23], the Full Bench of the Commission stated: “although it is an ‘important feature’ of constructive dismissal, it is not sufficient that the act of the employer results directly or consequently in the termination of the employment. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result.” (my emphasis) [24] Based on the unchallenged evidence that is before the Commission, whilst not in a position to make any finding, I am of the view that Mr Thomas has an arguable case that he was constructively dismissed. I can see no other reason for Mr Hayden to make his comment about “resigning before you get sacked” if it were not to encourage Mr Thomas to resign. As a result, the resignation can be identified to be “at the initiative of the employer”. [25] I have taken this into account. Fairness as between the person and other persons in a similar position-s.394(3)(f) [26] I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in this matter. [27] I have taken this into account. Conclusion [28] I have taken into account the decision in Nohra7 and note that the delay in that case was a relatively short period of time and involved the applicant being under identifiable psychological pressure. Neither of those circumstances exist in the current matter. [29] Despite reaching a view that Mr Thomas has an arguable case that he was constructively dismissed, I am not satisfied that this scenario provides an exceptional circumstance which would warrant granting Mr Thomas an extension of time by some 153 days to lodge his unfair dismissal application. 7 Nohra v Target Australia [2010] FWA 6857. -- 5 of 6 -- [2017] FWC 4022 6 [30] Applying the obiter in Nulty8, Mr Thomas’ ignorance of the statute does not provide for an exceptional circumstance. The statutory timeframe applies equally to employees who are either dismissed by their employer or who resign but claim to have been constructively dismissed. [31] I find that Mr Thomas’ circumstances were not out of the ordinary course, unusual, special or uncommon. [32] The application for an extension of time is refused and the substantive application for an unfair dismissal remedy is dismissed. COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code C, PR595007> 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’). 2 [2011] 203 IR 1 3 Above note at [13]-[14]. 8 Nulty v Blue Star Group [2011] 203 IR 1. -- 6 of 6 --